What is Probate?
Probate is the legal process with the court by which your property is transferred upon your death to your beneficiaries, including children and spouses. Today, in California, it takes approximately 1 ½ - 3 years before the probate process is complete. If you have minor children, the judicial process can take much longer and will require judicial intervention until your minor children become adults.
Probate is also a public proceeding, where private details of your life and property are disclosed to the public.
If you die with a Will ("testate"), the probate court determines if the Will is valid, hears any objections to the Will, orders that creditors be paid and supervises the process to assure that property remaining is distributed in accordance with the terms and conditions of the Will.
What is a Will Intestate?
If you die without a Will ("intestate"), the probate court appoints a person to receive all claims against the estate, pay creditors and then distribute all remaining property in accordance with the laws of the state. The major difference between dying testate and dying intestate is that intestate requires your assets to be distributed to beneficiaries in accordance with the distribution plan established by state law, which may differ considerably from what you want. Conversely, a testate estate (after payment of debts, taxes and costs of administration) is distributed in accordance with the instructions you provided in your Will.
State law sets the cost of probate. The fees charged are a percentage of the “gross assets” rather than the “net” assets. For example, if you own a home worth $500,000, but have a mortgage of $450,000, the probate fees are calculated as a percentage of the $500,000, which is the gross value. Further, what little remains after probate fees and court costs are taken out may take years before your beneficiaries receive what you have left for them. Below is a schedule of fixed charges and costs to probate an estate in California.